From Thomas Jefferson to ——, 25 December 1779

To ——

Williamsburg Dec. 25. 1779.

DearSir

The difficulties, which you proposed to me as to the commission of the peace I will endeavor to answer, as a private friend, for the satisfaction of your own judgement: the regular determination of them belongs to the judiciary department between whom and the executive should be a sacred barrier.

Under the regal government, the office of a justice of the peace was held during the pleasure of the crown only. Lawyers know that either estates or offices held during will are determinable by the slightest acts implying only, without positively expressing, a change of will. Hence the issuing a new commission of the peace determined the offices of those named in the former. Such of them therefore as were meant to be continued, were of necessity to be named again in the new commission; and a new qualification became necessary. On the establishment of the republican government, the office of justice was made to continue during good behavior, and the justices, then actually invested, were confirmed in their offices. The Executive not attending sufficiently to this change in the nature of the office, continued the old practice of repeating in every new commission the names of the former members intended to be continued, and of omitting others. Since this, they have considered the subject and altered their practice, by issuing a commission now to the additional members only. To form a true judgment therefore of the present state of the commission of the peace for your county, you must consider the justices actually in office at the time of forming the constitution, as making the ground work. The subsequent commissions so far as they added new members were legal and authoritative, but where they omitted or repeated the name of a former member they were so far mere nullities. The omission of a name could not deprive a justice of his seat, because he no longer held during pleasure, but had a free hold in his office from which he could not be ousted but on a regular prosecution. The repeating his name again was of course nugatory; and did not even infer on him a necessity for qualifying anew. This is the sum of the reasoning which induced the Executive to issue new commissions to the new members only, and not to meddle with the former members at all, but leave their situation altogether to the construction and operation of the law. I am aware that a difficulty arises as to the manner in which a justice shall vacate his seat. This however is not chargeable on the executive, whose duty is to act under the law as they find it. I was in hopes the legislature would have pointed out precisely the mode of disqualifying. Were I a justice myself, and desirous to withdraw, I should make my resignation in open court and of record, and repeat it by letter or deed sent to the executive, as I think these two acts together would amount to so certain a divestiture of the office, as to leave no doubt remaining, which might not be the case if one alone of them was relied on. I am Dr. Sir Your friend & servt.,

Th: Jefferson

RC (Andre deCoppet, N.Y., 1949).

The addressee of this letter, evidently a personal friend, has not been identified.

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